Analysis: In bathroom bill, politics disguised as policy

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The proposed bathroom bill percolating in the Texas Legislature doesn’t do what its supporters say it is supposed to do.

Here’s the caption — the legal description at the top of Senate Bill 6: “relating to regulations and policies for entering or using a bathroom or changing facility; authorizing a civil penalty; increasing criminal penalties.”

That’s pretty straightforward, because it has to be, but the rhetoric around the bill is more florid — and misleading.

It purports to protect Texans answering nature’s calls from people of the opposite sex. It has a logical flaw, however, because it doesn’t protect them in most of the public restrooms in the state — only the public restrooms in public buildings.

That makes no sense if the state wants to protect people from a clear and present danger or an existential threat. Imagine if Texas protected foster children on state property and nowhere else.

If allowing transgender people to choose which stalls to use was dangerous, the state would protect everyone everywhere — in publicly owned and privately owned buildings alike.

SB 6, as currently written, doesn’t do that — which is how you can tell that that’s not its real purpose. What it would do is highlight disdain for transgender people in a public way that might be rewarded by conservative voters at the polls in 2018 and beyond.

The bathroom bill has a little-dog-with-a-big-bark quality in common with legislation that purports to end payroll deductions for union and non-union public employees. Proponents make it sound like lawmakers are going to stop all of the unions from weaseling into government payrolls to collect dues. Whether or not you agree with the concept, that would be an understandable policy position. But that’s not what this bill does. The legislation would still allow police, fire and other first responders to pay their union dues with automatic payroll deductions; it would just cut out the other government employees — the ones the sponsors don’t like.

The bathroom bill has a big bark, too. The pitch is that restrooms — women’s restrooms in particular — would be made more dangerous if transgender persons who identify as female were allowed to pee there.

Here’s a bombshell: Many of them pee there now.

So as policy, this might not make sense. The politics are easier to understand.

The proposal would work better in a Republican primary than it would work on the streets. Three-quarters of Republicans believe Texans should use the restrooms that match the gender on their birth certificates instead of their gender identity, according to the latest University of Texas/Texas Tribune Poll. Among Democrats, 55 percent said Texans should use gender identity as their guide.

Slightly more than half of the non-Tea-Party Republicans in the survey said passing the legislation is important to them, while 55 percent of Tea Party identifiers and 55 percent of Democrats said it was “not very” or “not at all” important.

If that’s all there was to it, the state’s 181 senators and representatives wouldn’t be so tangled up in knots about it. Ours is a Republican Legislature. The lieutenant governor, a populist conservative, has made this a banner issue. Republican voters are for it.

It purports to protect Texans answering nature’s calls from people of the opposite sex. It has a logical flaw, however, because it doesn’t protect them in most of the public restrooms in the state — only the public restrooms in public buildings.

Those are the ingredients of a Republican primary purity test, where a ‘no’ vote on restroom regs could doom an incumbent lawmaker.

Ordinarily, that would be the end of it. But some of the same thinking that keeps privately owned buildings out of this kind of legislation — lawmakers’ reflexive reluctance to regulate the private sector — has legislators frozen.

Lots of businesses don’t like the bathroom bill. The Texas Association of Business is against it (the lieutenant governor begs to differ). More than 1,200 companies have signed a pledge circulated by a group called Texas Competes to say they oppose laws and policies that discriminate against LGBTQ Texans.

Republican Gov. Greg Abbott hasn’t taken a position for or against the legislation. He chided the NFL — via tweet — for trying to sway public sentiment on this, but he has also said that there is a lot of studying to do before deciding this one. That’s what a governor does when he wants to slow down and think about it.

House Speaker Joe Straus — in a favor to the nervous members of the House — has said publicly that it would be helpful to legislators to know the governor’s position before they have to vote. That not only slows things down but also puts the governor in the position — whether he likes it or not — to call the dance.

More columns from Ross Ramsey:

• The safety net for Texas children has some big holes in it, and most lawmakers want that fixed. But it's going to cost money — a harder sell in a conservative Texas Legislature.
• State officials have done a lot of work to stop sex trafficking in Texas, but the results revealed by the Tribune's Sold Out series are demoralizing. The state's own safety net is part of the pipeline for victims of trafficking.
• Lawmakers want to stop deducting dues for union and non-union employee associations from state paychecks — but only for the employees they disagree with. 

Disclosure: The Texas Association of Business and the University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.